KEMPEGOWDA Vs. BHAGYAMMA

JUDGEMENT

(1.) Heard the learned counsel for the appellants and the learned counsel for the respondent.

(2.) This appeal is filed challenging the judgment and decree dtd. 5/8/2016, passed in R.A.No.455/2014, on the file of the VIII Additional District and Sessions Judge, Mysuru.

(3.) The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of partition and separate possession is that the suit schedule properties are the ancestral and joint family properties of the plaintiff and the defendants. In pursuance of the suit summons, defendant No.1 appeared and filed the written statement contending that item Nos.5, 6, 8, 9 and 10 are the self-acquired properties and also contended that the plaintiff has taken her share as stated in paragraph No.16 of the written statement. Based on the pleadings of the parties, the Trial Court framed the issues with regard to whether the suit schedule properties are the ancestral and joint family properties and whether defendant No.1 proves that item Nos.5, 6, 8, 9 and 10 are the self-acquired properties of defendant No.1. It is also the contention of defendant No.1 that the plaintiff has already taken her share and hence the Trial Court framed an issue whether the plaintiff is entitled for 1/6th share as contended in the suit. Additional issue is also framed with regard to non-joinder of necessary parties that whether the suit is bad for non-inclusion of all joint family properties. The plaintiff in support of her claim examined herself as P.W.1 and got marked the documents at Exs.P.1 to 25. The defendant No.1 examined himself as D.W.1 and examined two witnesses as D.W.2 and D.W.3 and got marked the document of Ex.D.1. The Trial Court after considering the material on record, answered issue Nos.1 and 2 in partly affirmative in coming to the conclusion that some of the properties are ancestral and some of the properties are self- acquired properties of defendant No.1. Regarding the plaintiff has taken her share, answered issue as negative and the Trial Court comes to the conclusion that the plaintiff is entitled for 1/5th share in respect of item Nos.1 to 4, 11 and 12 of suit schedule properties and not entitled for share in respect of item Nos.5 to 10.